Monday, May 6, 2013

Will Republic Act 10173 otherwise known as the “Data Privacy Act” of 2012 provide sufficient mechanism to an introduction of national ID system in the Philippines without the constitutional issues that have arisen in the case of Ople v. Torres (G. R. # 127685)?

Electronic technology has emerged as one of the greatest
invention of the human mind. And through such development, access to
information and communication had become limitless as it came through the door
of anyone. This advancement has opened avenues as it provided convenient ways
of business, economics and communication and as termed by Tom Friedman in his
book, the world has become flat.

Friedman’s
idea of the world becoming flat meant that “the global competitive playing
field is being leveled and it is now possible for more people than ever to
collaborate and compete in real time with more other people on more different
kinds of work from more different corners of the planet and on a more equal
footing than at any previous time in the history of the world”.1 Friedman entails that this “flattening”
of the world is the result of ten factors and one of which is the new age of
connectivity no other than the World Wide Web.

With
such commendable result of technology, what Friedman’s idea of the world
becoming flat must not getaway that this effect does not only lead an advantage
but also the negative outcome of easily producing false information and would
basically result in lessening the privacy of each of every citizen which
Philippine Constitution mainly values. One result of the enormous outcome of
technology, is the evolution of the National Identification system.

NATIONAL IDENTIFICATION SYSTEM AND THE
CONSTITUTIONAL RIGHT TO PRIVACY

A national identification system is
basically a method utilized by the government to establish the identities of
individuals in their society who necessarily transact with the government or
avail of its services. Other countries have adopted the system, each having a
version of its own that is tailored-fit to accommodate their own
socio-political circumstances.2 The House
Bill 217, which is introduced by Honorable Rozzano B. Biazon, provides the
proposition of a national identification system, which aims to lessen “Red
Tape” in the bureaucracy or in the delay of processing documents, and
transactions that has always been the chief complaint with the government
offices because it lacks proper proof of identity and efficient tracking
system.

Proponents of the bill believe that the benefits
of having such a system far outweigh the disadvantages. Advocates contend that
with a National ID system in place, the government shall gain substantial
headway in combating terrorism, illegal immigration, crime and tax fraud.
Certainly, they argue, with essential data readily available to the government
as a result of the system, illegal activities can be easily monitored and
contained early on thereby preventing a more adverse situation that might go
out of hand.3 Given such possible advantages, I come
to think that such reasons still, cannot be enough in order to sacrifice every
bit of privacy that a citizen can have. Combating Illegal immigration and tax
fraud cannot be of greater or even equated to every person’s right to life and
liberty.

One of the pros of the system is the lessening
of ‘red tape’. It may be hard to admit, but ‘red tape’ became and is until now
the bad character of our government offices and services, which we are not
proud of. Continuous complaints have been received by the government about
this, and the national system became the cover-up to solve this problem. As a
responsible citizen, we are then confronted with the issue whether this
proposed system provides hidden avenue for the government to curtail our
constitutional right to privacy.

Would the national identification system curtail
every citizen’s right to privacy? This is the main question, which will make us
think that the system may contain negative effects although confronted with the
advantages, which what the system may come about.

The system provides that every person who is 18
years of age and above which is legally residing in the Philippines is required
to register for a National Identification Card (NIC). Such card contains a
photo, its name, address, date of birth and its signature. If we come to think
of it, we may feel that there is nothing wrong about and makes us think of ‘why
not?’ but the bill confronts us of provisions which are to be vague and the
uncertainty of it provides ways of when and where to use such card.

Section 5 of the House Bill 2174 provides the functions of the National
Identification Card where I am confronted with questions, which it may be used.
Since it is not new that we question the system because of the right to
privacy, we should inquire then of when could only such card be used. Such
section which is provided in letter (g) provides us a very vague provision of
the extent of the card. Critics has been questioning such system because of
such extent and the only way to solve such problem is to define and set the
limitations of the use of the card in order to persuade every citizen that such
would not be used in cases which would not curtail the right to privacy.

Contentious issues
have arisen with such system. ‘Among these issues are the high costs of its implementation
and the lack of assurance that it would result in more efficient government
service. The greater concern however were those being put up by civil
libertarians and human rights advocates who are apprehensive of the possible
misuse and abuse of the system. They contend that in spite of the noble goals
hoped for, an identification system can still suffer from the so- called
“functionality creep,” meaning it can serve purposes other than its original
intent. Thus, they say that the data contained in the ID system may be used as
a mechanism for repression against political opponents or as basis for
discrimination.’5

With the issue of cost of the implementation of
the system, I come to think that we can’t always question whether the
government can afford such but the important question is whether it would
mainly resolve the issues which the system try to solve and that is to provide
its citizens of better and systematic services and of course to eliminate the
issue of ‘red tape’. And I agree with its greatest concern and that is the
possibility of misuse and abuse of the system, which affects greatly the
privacy of every Filipino.

The government provide us answers that the
system has been applied by foreign countries and provided a convenient and systematic
service in terms of the government agencies, but such answer becomes immaterial
unless the function and use of such card is presented and assures the citizen
of its limitations, extent and the rare possibility of becoming misused and
abused by the government officials.

The thought of a
mandatory national ID system is repulsive. It is "BIG BROTHER"
mentality again, giving government the means to look over our shoulders and
monitor us. Even if it were only on a voluntary basis, any government agency
can simply make the procurement of such ID a requirement, a condition for the
agency’s assistance or service. And instead of arguing about it, a citizen
would probably just get one just to avoid any unnecessary delay in his or her
transaction with that agency. 6

DATA PRIVACY ACT AS A
SOLUTION TO THE CONSTITUTIONAL ISSUES PROVIDED IN OPLE vs. TORRES?

The
case of Ople vs. Torres mainly concerns the constitutionality of Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System”
which was issued by President Fidel V. Ramos in 1996. By then Senator Blas Ople
questions such order in two contentions which first, it is a usurpation of the
power of Congress to legislate and second is that the order intrudes to the constitutional
right of privacy of every citizen. The case mainly revolves to the decision of
the Supreme Court as it proclaimed the Administrative Order to be
unconstitutional because it is against the Bill of rights specifically the
right of every citizen to privacy.

The decision, which stated that “the right to privacy is one of the most
threatened rights of man living in a mass society. The threats emanate from
various sources — governments, journalists, employers, social scientists, etc.
In the case at bar, the threat comes from the executive branch of government
which by issuing A.O. No. 308 pressures the people to surrender their privacy
by giving information about themselves on the pretext that it will facilitate
delivery of basic services. Given the record-keeping power of the computer,
only the indifferent fail to perceive the danger that A.O. No. 308 gives the
government the power to compile a devastating dossier against unsuspecting
citizens.”7 has been the continuous reason why the
country does not have the ID system until this time and this is where the Data
Privacy Act comes in the picture.

The Supreme Court had
declared the National ID system to be "...may interfere with the
individual's liberty of abode and travel by enabling authorities to track down
his movement; it may also enable unscrupulous persons to access confidential
information and circumvent the right against self-incrimination; it may pave
the way for "fishing expeditions" by government authorities and evade
the right against unreasonable searches and seizures. The possibilities of
abuse and misuse of the PRN, biometrics and computer technology are accentuated
when we consider that the individual lacks control over what can be read or
placed on his ID, much less verify the correctness of the data encoded. They
threaten the very abuses that the Bill of Rights seeks to prevent. The ability
of sophisticated data center to generate a comprehensive cradle-to-grave
dossier on an individual and transmit it over a national network is one of the
most graphic threats of the computer revolution. The computer is capable of
producing a comprehensive dossier on individuals out of information given at
different times and for varied purposes. It can continue adding to the stored
data and keeping the information up to date. Retrieval of stored date is
simple. When information of a privileged character finds its way into the
computer, it can be extracted together with other data on the subject. Once
extracted, the information is putty in the hands of any person. The end of
privacy begins."8

With the advances in
information technology, privacy in personal data has become illusory. For the
right price or with good connections, private information disclosed in
confidence to companies or government offices can be made available to or
accessed by interested parties.9 And as
provided by the Court, Filipino citizens are not yet ready to have such
advancement because we lack laws, which would mainly secure such information
that would affect the privacy of every citizen. And with the passing of the
Data Privacy Act, will it provide enough security for the citizens? Can the
government fully implement such provisions? Does the government have enough
capability or machineries to fulfill such protection or security?

Republic Act 10173
otherwise known as the ‘Data Privacy Act of 2012’ which mainly provides
regulations to the use of personal information may be the solution as to the
implementation of the National ID system in the Philippines. The constitutional
right to privacy has been considered as the main reason of why until now the
bill introducing such system has not been passed in the country. The question
of whether such act newly passed by the legislative would then be enough to
protect the issues of privacy of the citizen in order for the National ID
system may be pursued by the country.

The act aims to
substantially raise the profile of the Philippines in the data privacy (and
business in the data processing) sphere by mandating that all personal
information controllers, being persons who control the collection, holding,
processing or use of the personal information of others (defined in the Act as
‘Data Subjects’) comply with a raft of requirements before any such collecting,
holding, processing or use may take place.10

Such requirements are
provided in Section 411 of the Republic Act
which mainly discusses the scope in which personal information may only be
applied and such implementation of the stated requirements shall be ensured by
the National Privacy Commission as provided by the section 7 of the Act. The
Commission is mainly tasked to ensure the confidentiality of all the personal
information, which may be gathered by the controllers as defined also by the
Act.

Given the fact that
the law has provision for a National Privacy Commission, our government does
not have enough machineries and manpower to maintain such commission’s purpose.
For the continuous preservation of personal’s information, although such
Commission exist, which we don’t even feel exist right now, given the fact that
the law was existing for some time, as citizen would still not feel secured and
protection given the fact that there is a staggering possibilities of abuse not
only to the government but the officials who could turn such information
against the advantage of anyone.

CONCLUSION

Republic Act 10173 or
the Data Privacy Act does not mainly resolve the constitutional issues that the
case of Ople vs. Torres presents.

Right to privacy is
long well established in our country, almost all the living Filipinos know the
history of how Filipinos fought for the freedom we have today. Filipinos fought
for the freedom from the grip of dictatorship that had bought by the Martial
Law. And from the introduction of the National ID system, this freedom can be
undermined for the misuse and abuse of the purposes of which such was created.

As what Justice Romero
said in his separate opinion in the case of Ople vs Torres, what marks off man from a
beast is that a man is a rational being, one who
is endowed with intellect which allows him to apply reasoned judgment to
problems at hand; he has the innate spiritual faculty which can tell, not only
what is right but, as well, what is moral and ethical. Because of his
sensibilities, emotions and feelings, he likewise possesses a sense of shame.
In varying degrees as dictated by diverse cultures, he erects a wall between
himself and the outside world wherein he can retreat in solitude, protecting
himself from prying eyes and ears and their extensions, whether form
individuals, or much later, from authoritarian intrusions.12

The government
presents National ID system mainly for the purpose of crime prevention,
combating of terrorism & tax fraud and administrative efficiency. But with
such purposes, we should not decline its brought about disadvantages of which
presents human rights and privacy issues.

According to human rights activists, an ID
system can be a double-edged sword because it can suffer from “functionality
creep” which means it can serve purposes other than its original intent. Thus,
even if the original rationale for an ID system is simply to cut government red
tape, a government may eventually use it as a mechanism for repression against
political opponents or to discriminate on the basis of race or ethnicity. For
instance, the Rwanda genocide in 1995 was facilitated by the use of ID cards.
Newspaper reports recounted that Rwandans who presented ID cards bearing a
Tutsi identification were hacked to death by the Hutu militia.13 And although the government firmly
advocates that the ID system can only be used for specific purpose or
determination, and provides National Privacy Commission in the Data privacy
Act, this does not equate to guaranteeing people that such is flawlessly
implemented. The government does not have enough machineries, manpower and even
costs to control information especially when technology comes into play.

The purposes of administrative efficiency or
success in decreasing incidence of tax evasion and red tape on the other hand,
can only be achieved if the government makes significant strides in instituting
in the bureaucracy the central tenets of good governance: transparency,
predictability, participation and accountability.14
And which a basic characteristic of a democratic government should have.

Ultimately, the viability of an ID system rests
on a question that has hounded mankind since the time it founded the
institution of government as the basis of social order: To what extent should a
citizen allow the government to interfere with private affairs in exchange for
his security? 15

1 Friedman, Tom A. (2006). The World is Flat: A Brief History of the Twenty First
Century. United States: Farrar, Straus and Giroux. Page 8.

4Section
5. Functional
Uses of the ID Card. – The ID
card that will be issued shall be presented and honored in transactions
requiring the verification of the person’s identity, such as, but not limited
to:

a)transactions with any government agency;

b)filing applications for any services and
benefits offered by the Government Service Insurance System (GSIS), the Social
Security System (SSS), and The Philippine Health Insurance Corporation
(PhilHealth);

c)tendering income tax payments to the
Bureau of Internal Revenue (BIR);

d)admission in any government hospital,
health centers or similar institutions;

e)identification for admission in all
schools, colleges, learning institutions and/or universities, whether public or
private; or

f)proof of identity, status, age and
address;

g)other similar transactions or uses which
may be defined by the DOJ in the implementing rules and regulations.

11Section
4. Scope -SEC. 4. Scope. –
This Act applies to the processing of all types of personal information and to
any natural and juridical person involved in personal information processing
including those personal information controllers and processors who, although
not found or established in the Philippines, use equipment that are located in
the Philippines, or those who maintain an office, branch or agency in the
Philippines subject to the immediately succeeding paragraph: Provided, That
the requirements of Section 5 are complied with.

This Act does not apply to the following:

(a) Information about any individual who is or
was an officer or employee of a government institution that relates to the
position or functions of the individual, including:

(1) The fact that the individual is or was an
officer or employee of the government institution;

(2) The title, business address and office telephone
number of the individual;

(3) The classification, salary range and
responsibilities of the position held by the individual; and

(4) The name of the individual on a document
prepared by the individual in the course of employment with the government;

(b) Information about an individual who is or
was performing service under contract for a government institution that relates
to the services performed, including the terms of the contract, and the name of
the individual given in the course of the performance of those services;

(c) Information relating to any discretionary
benefit of a financial nature such as the granting of a license or permit given
by the government to an individual, including the name of the individual and
the exact nature of the benefit;

(e) Information necessary in order to carry out
the functions of public authority which includes the processing of personal
data for the performance by the independent, central monetary authority and law
enforcement and regulatory agencies of their constitutionally and statutorily
mandated functions. Nothing in this Act shall be construed as to have amended
or repealed Republic Act No. 1405, otherwise known as the Secrecy of Bank
Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency
Deposit Act; and Republic Act No. 9510, otherwise known as the Credit
Information System Act (CISA);

(f) Information necessary for banks and other
financial institutions under the jurisdiction of the independent, central
monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act
No. 9510, and Republic Act No. 9160, as amended, otherwise known as the
Anti-Money Laundering Act and other applicable laws; and

(g)
Personal information originally collected from residents of foreign
jurisdictions in accordance with the laws of those foreign jurisdictions,
including any applicable data privacy laws, which is being processed in the
Philippines.

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